Filing a Partition Lawsuit in New Hampshire: Step-by-Step FAQ

Short answer

If co-owners of real property in New Hampshire cannot agree on how to use or divide the land, any co-owner can start a partition action in the appropriate New Hampshire court. The court will determine whether the property can be divided among the owners (partition in kind) or must be sold and the proceeds distributed (partition by sale). The process involves filing a complaint, serving the other owners and interested parties, possible interim orders (for preservation or rents), and a court-ordered division or sale.

Detailed answer — how the partition process typically works in New Hampshire

1. What is a partition action?

A partition action is a civil lawsuit that asks the court to divide jointly owned real property so the owners can end their co-ownership. The court has two primary remedies:

• Partition in kind: physically divide the property so each owner receives a portion roughly equal to their ownership interest;
• Partition by sale: order a sale of the whole property and divide the sale proceeds among the owners according to their shares.

2. Who may file and where to file

Any joint owner (tenant in common, joint tenant, or owner with a recorded interest) may file a complaint for partition. File the case in the county court that has jurisdiction over the property — typically the Superior Court in the county where the land sits.

3. Preliminary steps before filing

Before filing, try to resolve the dispute informally. Consider mediation or a negotiated buyout. If a buyout is possible, document the offer and any refusals — courts often view prior settlement efforts favorably.

4. Preparing and filing the complaint

The complaint should state:

• Identification of the property (legal description and address);
• Names and addresses of all known co-owners and other parties with recorded interests (mortgagees, lienholders, judgment creditors, or tenants);
• The type of ownership claimed and each party’s ownership share (if known);
• The relief requested (partition in kind or sale) and any alternative relief (e.g., appointment of a receiver, order to preserve property, or valuation by the court);
• Facts supporting the court’s jurisdiction and venue.

5. Serving the parties and notifying lienholders

After the complaint is filed, the plaintiff must serve it on all co-owners and any recorded lienholders or interested parties. Proper service is essential; without it the court cannot proceed as to non-served parties.

6. Interim orders — preserving the property

Either before or after filing, a party may ask the court for temporary relief such as:

• An injunction to prevent waste or a change to the property;
• Appointment of a receiver to collect rents, pay necessary expenses, or preserve the property;
• Orders to preserve evidence or maintain insurance.

7. Discovery, valuation, and attempts at settlement

Parties exchange documents and may hire appraisers. The court may require appraisal or appoint a referee/commissioner to survey and value the property. Courts often encourage or require mediation to settle issues like allocation of costs or whether a division is practical.

8. How the court decides between partition in kind and sale

The court examines whether the land can be divided fairly without unfair prejudice to any owner. Factors include:

• Physical nature of the property (can it be divided practically?);
• Size, shape, access, and zoning or subdivision restrictions;
• Value lost by division vs. sale proceeds and costs;
• Interests of lienholders and third parties.

If practical division would be inequitable or impossible, the court will likely order a sale and distribution of proceeds.

9. The sale process and distribution of proceeds

If the court orders a sale, it will set the method (public auction, private sale with court confirmation, or sale by a commissioner). The court will pay debts and liens from sale proceeds, deduct costs (including the cost of sale and court-appointed officials), and distribute the remainder according to each party’s legal interest in the property.

10. Timeframe and costs

Partition cases vary in length. Simple cases can conclude in months; contested or complicated cases can take a year or more. Costs include court filing fees, attorney fees, appraisal and survey fees, and sale costs. Courts sometimes allocate costs among parties based on fault or benefit.

11. Special issues to watch for in New Hampshire

• Recorded liens and mortgages generally must be paid from sale proceeds and have priority according to recording and law;
• Zoning, subdivision, or conservation restrictions can make partition in kind impossible;
• Tax consequences: sale or buyout may create taxable events for some owners.

For state statutes and further legal detail, consult the New Hampshire Revised Statutes and the New Hampshire Judicial Branch. The RSA index is available at https://www.gencourt.state.nh.us/rsa/html/ and the New Hampshire Judicial Branch at https://www.courts.nh.gov/.

Note: A title search and review of recorded instruments (deeds, easements, mortgages, liens) is critical early in the case—those records determine who must be joined and how proceeds are distributed.

Helpful Hints

• Gather records before you file: deeds, prior survey maps, mortgage statements, tax bills, leases, and any written agreements among owners.
• Talk to the other owners and try mediation first—courts appreciate good-faith settlement efforts and mediation often saves time and money.
• Get a current appraisal and, if relevant, a land survey. These reduce disputes about value and boundary division.
• Identify all encumbrances early. Judgments, mortgages, or tax liens can change the net proceeds substantially.
• If you want to keep the property, consider offering a buyout. A court-ordered buyout (one owner purchasing the other’s share) can be faster than a sale.
• Expect interim requests: the other side may ask the court to appoint a receiver for rents or to preserve the property; be prepared to support or oppose such motions with facts.
• Consider the cost-benefit: in small-value disputes, litigation costs can exceed your expected share of proceeds; settlement may be more practical.
• Ask the court about local forms and any required notices—procedures and fee schedules can vary by county.